I was about to complete my remarks before the announcement. I would like your indulgence in order to be associated with the comments that have just been made, not least because one of the injured soldiers was a constituent in my area. In fact, I know the Mason family in Shankill very well. I hope none of the soldiers is too badly injured and that they will recover fairly quickly. I had virtually completed what I had to say on the issue so perhaps I will leave it at that for the present.
Local Government (Planning and Development) (No. 2) Bill, 1988:Committee Stage (Resumed).
Debate resumed on amendment No. 38:
In page 10, subsection (1), line 15, after "granted" to insert ": provided that such permission would not contravene a development objective in the development plan".
—(Eamon Gilmore.)
I support this amendment which speaks for itself. The Minister very courteously arranged for the speedy distribution this morning of the Environmental Research Unit report entitled The Development Control System 1989 — A Survey of 1986 Planning Applications and Development based on them to 1989. The section dealing with refusal reasons for planning applications states:
Significantly, 81 per cent of refusal decisions included at least one non-compensatable reason, and a further 14 per cent included a reason which might possibly be found non-compensatable. This confirms the finding in an AFF survey and gives some credence to the view that planning authorities rarely refuse development unless there is a clearly non-compensatable reason, or that such reasons are `forced' into decisions to safeguard the financial position of the authority.
I want to stress the last clause which refers to the forced refusal into a decision. All of us know of such cases.
The intent of this amendment is that where somebody is refused planning permission and there are compensatable reasons for doing so, the local authority would not be permitted to turn round and effectively tear up their development plan, albeit by way of "material contravention, in order to avoid the payment of compensation". There is some merit in this. The number of reasons which would be compensatable would be severely restricted, as we will find out when we deal with the Schedules, but nevertheless the principle of the amendment is good. Most of the planning abuse which has given rise to many of the concerns we heard this morning occurs in the Dublin area and the current development plan is effectively being written every time a section 4 motion is passed, to the extent that it is now a nonsensical document from the point of view of consistency.
In support of the logic of the argument I wish to put on the record, as I have done, that turning refusals into decisions to avoid the payment of compensation is a well established and well documented local authority practice and if we want to give any real meaning to the essence of section 14 the amendment proposed will reinforce it.
I cannot favour this amendment. A notice under section 14 is understood to be a holding arrangement. It is a permissive statement of principle that the land in question is in the opinion of the planning authority capable of other development for which planning permission ought to be granted. Section 14 (5) makes it clear that this permissive statement will not bind the planning authority or An Bord Pleanála in dealing with an actual planning application within the ambit of the notice. It makes this clear because it directly contemplates the possibility of planning permission being refused or restrictively conditioned notwithstanding the earlier notice.
The amendment, as proposed, would prevent the notice from specifying any alternative development which would materially contravene the development plan. I do not understand why this restriction should be imposed. Under section 26 (3) of the 1963 Act a planning authority are free, as a reserved function, to contemplate a material contravention in any case which comes before them. A notice under section 14 will not prejudice that position one way or another since section 14 (5) already envisages that a planning authority, in the form of a manager or elected members, can draw back from the notice. I cannot accept the amendment for those reasons.
I am disappointed at what the Minister has said because what is at issue here in the first place is the status of development plans. I sometimes wonder if members of local authorities and members of the public are wasting their time in drawing up development plans when under this legislation a planning authority will be entitled to effectively promise a developer that he will get planning permission which would contravene a development plan and as has already been said a number of times today, the elected members of local authorities may, for whatever reason, decide to materially contravene a development plan.
I counted the number of material contraventions of the development plan Dublin County Council have had since the 1985 local elections. When I last counted, 93 material contraventions of the development plan had been passed.
When?
Since 1985, 93 motions to contravene the development plan of Dublin County Council have been passed. For the information of the Minister, on 85 of those occasions the motion was either proposed or seconded by members of his party.
There is serious concern about the status of development plans. Members of the public who have bought houses within or near an area which is zoned in a particular way and who have found out a development is going to go ahead which contravenes that plan are asking, and rightly so, how a development plan can be so easily set aside and what is the purpose of it all. It is a great system of exercising democracy whereby elected members and the general public can participate in a very open way in drawing up a development plan for an area but the problem is that once a development plan is drawn up it is repeatedly undermined.
The issue we are discussing is a form of planning blackmail. If a developer who is refused planning permission lashes in a claim for compensation he can effectively blackmail the local authority into giving an undertaking for an alternative development to take place. This has been a repeated problem in the Dublin area. I mentioned the Red Rock development at Howth and Deputy Shatter will be familiar with the Farmleigh case. All over County Dublin undertakings have been given to grant planning permission simply to avoid the payment of compensation.
Admittedly the provision in the Bill is somewhat different from the existing one but nevertheless it still boils down to the same thing; claims for compensation can be lodged and undertakings given by a local authority. The danger — and this has happened — is that when a claim for compensation is lodged and a local authority are in some doubt as to whether or not that claim might be sustained the temptation is to give the undertaking and err on the safe side rather than run the risk, as Dublin County Council did in the Montgorry case, of going the full distance. This is fair enough if the undertaking prevents compensation having to be paid out but it is highly dangerous to give undertakings which would contravene a development plan. Who will give the undertaking? Will a county manager give an undertaking which would contravene the development plan without first bringing it to the notice of the elected members of the local authority whose function it is to decide on a development plan? It would appear from what the Minister has said in his last reply that that will be the case but that under section 14 (5) a planning application will have to go to the elected members for a decision on the material contravention. At that stage any manager's report on a material contravention would point out to members that they are already in a way committed, and if they failed to pass the material contravention, they would leave the local authority open to a claim for compensation. We have to stand firm on the development plan. Earlier Deputy Quinn had an amendment which was ruled out of order and he has indicated that he will bring it in later. I have a later amendment which deals with the importance of the development plan and the need to protect it under this legislation, but we completely undermine the development plan if the planning authority has the power to give undertakings which would contravene the development plan. I will be pressing the amendment.
The Deputy is widening the scope of the debate, and he knows it. He has made his view quite clear, that planning authorities should not be permitted to grant planning permission in material contravention of the development plan. That is the Deputy's case and he is not just making it in relation to section 14, but in relation to any circumstances whatever. That is a different point of view entirely. What I am saying is that material contraventions are often initiated when the development plan is out-of-date. The Deputy can argue all he likes in here, but what I would say is to let the planning authorities get on with their business and review their own development plans. The County Dublin development plan is seven years old, and the one for the city is ten years old. Certain things have happened in the meantime.
It is not ten years old.
It is. Certain things have happened in the intervening period, and why? Because no proper detailed review had been undertaken. The Deputy cannot use this fact to argue that material contraventions should be outlawed entirely, and that is what he is pressing here. I cannot accept this given the difference which exists between the undertakings given under the 1963 Act and what is now proposed. The Deputy could change his mind again on that matter. In those circumstances, I cannot accept the amendment.
Amendment put.
The Committee divided: Tá, 22; Níl, 71.
Tá
- Bell, Michael.
- Byrne, Eric.
- Ferris, Michael.
- Gilmore, Eamon.
- Gregory, Tony.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- McCartan, Pat.
- Mac Giolla, Tomás.
- Moynihan, Michael.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Ryan, Seán.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
Níl
- Ahern, Dermot.
- Ahern, Michael.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John (Wexford).
- Callely, Ivor.
- Clohessy, Peadar.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Ellis, John.
- McCreevy, Charlie.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P.J.
- Nolan, M.J.
- Noonan, Michael J. (Limerick West).
- O'Connell, John.
- O'Dea, Willie.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- O'Leary, John.
- Fahey, Jackie.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Harney, Mary.
- Haughey, Charles J.
- Hillery, Brian.
- Hilliard, Colm.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Lyons, Denis.
- Martin, Micheál.
- O'Rourke, Mary.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Reynolds, Albert.
- Roche, Dick.
- Stafford, John.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Wilson, John P.
- Woods, Michael.
- Wyse, Pearse.
Tellers: Tá, Deputies McCartan and Byrne; Níl, Deputies V. Brady and Clohessy.
Amendment declared lost.
I move amendment No. 39:
In page 10 subsection (3), line 24, after "subsection (5)" to insert "or for a maximum period of five years".
This subsection deals with the same issue of granting undertakings. Under subsection (3), the provision is that the notice served by the local authority remains in force in an open-ended way until it is either withdrawn by the local authority or annulled by virtue of subsection (5). I feel that it is undesirable that the notice should be open-ended, and I am proposing that there should be a limit of five years.
I considered this very carefully. The amendment will place a five year limit on the life of the notice under section 14. Is that what the Deputy intended?
That is right.
There is something to be said for that proposal but I would like a little time to consider it further. I would like some legal advice on some of the implications in the terms of equity for persons entitled to pursue compensation claims. I will instance what is giving me some difficulty. As formulated the amendment would have the effect — I take it, entirely unintentionally — of exposing the planning authority to compensation on the expiry of the five year period. I do not think the Deputy wants that — in fact I am positive he does not. A further provision would be needed to prevent that consequence of what the amendment provides. If the Deputy is agreeable to that understanding of it I would like a little time to consider it further. I was going to go against it because it had that consequence, but because the principle seems reasonable I would like to consider it further.
Amendment, by leave, withdrawn.
Section 14, as amended, agreed to.
SECTION 15.
I move amendment No 40:
In page 10, lines 48 and 49, to delete all words from and including "the Minister may" down to and including "he is satisfied" and substitute "the High Court may allow, the High Court makes an order declaring it is satisfied".
Speaking on Second Stage I raised the issue whether section 15 was required in the Bill at all. I still have some doubts whether we require the section. On the assumption that the Minister would not agree to its deletion I have tabled an amendment that provides for the High Court, instead of the Minister, to exercise the powers this section prescribes.
The amendment is made to section 15 (1) but a similar amendment would be required to section 15 (3) which has not been tabled. Nevertheless, it gives us an opportunity to discuss firstly the generality of the section and whether it is appropriate that the Minister exercise the powers the section prescribes. In the context of all the other changes we are making in the planning laws I see no need for section 15 at all. I would like to get the Minister's views as to why he believes it necessary to include this section in the Bill. It is difficult to see why it should be the Minister who would make decisions, in the exceptional circumstances that would arise under the section, that a compensation payment should be made. It seems more appropriate, if it is a question of justice or equity entering into this, that the courts should make that decision, not the Minister.
I made the point on the last day we spoke on this that it would put the Minister in a difficult position. A Minister could be put under considerable pressure to make the right decision, "right" being right in the eyes of particular supporters under this section. This could create difficulties for a Minister and a Minister who acts perfectly properly in exercising the powers conferred by this section could be laying himself open to wrong accusations of impropriety. I am not suggesting that the current Minister would in any way behave improperly, and I want to put that on the record. I am unhappy about the question of the need for the section generally but if we are to retain it I am unhappy that the powers it prescribes should fall into the lap of the Minister for the Environment rather than a determination being made by the court whether in justice or equity a particular sum should be made by way of compensation.
I have had concerns very similar to Deputy Shatter's about this section. The Minister said a number of times that the effect of this Bill will be to limit the occasions when the issue of compensation will arise at all. It lists the circumstances in which compensation will not be paid. Whereas the Bill may have closed what is commonly referred to as the planning loophole, section 15, if it does not reopen it, provides the key to reopening it in that, notwithstanding the other provisions of the Bill, it gives the Minister the right to make a decision to order compensation to be paid in certain circumstances. I do not see the logic of that.
The Bill itself is quite extensive. It provides for the circumstances in which compensation will be paid. We are spending a great deal of time teasing them out. I do not understand why any Minister would want to have this power in the first place. I agree with Deputy Shatter that it would put a Minister in a very difficult position where there might be pressure on him or her to make a decision to award compensation. There was a great deal of experience before the establishment of An Bord Pleanála of Ministers for Local Government, as it was then, coming under enormous pressure, and relenting to that pressure very often, to grant planning permissions on appeal. I can see Ministers coming under precisely the same pressure where a permission is refused where under the terms of this Bill the applicant would not be entitled to claim compensation and would use this provision of the Bill to exert pressure on the Minister to have an award made. That is not good. Either we are legislating for planning compensation or we are not. To some extent having legislation which covers planning compensation is a waste of time if at the end of all that the Minister can come along and direct that compensation be paid. Even under subsection (3) where a local authority would have issued a notice giving an undertaking that certain planning permission could be granted in a particular case, the Minister would still have the right under this subsection effectively to order that compensation be paid. Therefore, the effect of the section is largely to negative the Bill. It will all depend on the Minister concerned. There is no restriction on what the Minister might do in this case. Nothing is laid down as to the circumstances in which he could do it. It is very open ended. It is giving the Minister for the Environment virtually carte blanche to award planning compensation. That is the net effect, notwithstanding what the rest of the Bill provides for.
I have an amendment to delete the section. I support Deputy Shatter's amendment and if it is carried or the Minister is prepared to accept it I am prepared to withdraw my amendment.
We are talking about the amendment but Deputy Gilmore has broadened the arguments on the amendment to take in the whole section. I think there is great merit in this. I cannot see why section 15 was put in in the first instance. It may well be to provide some degree of balance.
That is exactly the reason given.
That is how I would interpret it but then I strongly advise the Minister to take on board the sense of the amendment proposed by Deputy Shatter. If equity and justice need to be counterbalanced in some cases — and hard cases make poor law, in this case bad law — the last thing we want it to get ourselves as a Legislature, a body politic, back into the position of pressure coming on any Minister. All of us as politicians are subject to those kinds of pressures from time to time. In the section which Deputy Shatter's amendment proposes to amend the powers are so broad that it is really a judicial matter. Section 15 (1) concludes as follows:
...the Minister makes an order declaring that he is satisfied that it would not be just and reasonable in the particular circumstances that payment of compensation should be prevented by the provisions of section 13.
That should be a matter for the court or the Ombudsman but not for an office holder who would be seeking re-election.
I can understand the Deputy's concern in this. Deputy Quinn sums it up well in that we took a lot of advice on this matter and it was to give a constitutional balance that we inserted this section. We are going so far in this legislation that we are at the brink and to try to maintain that balance we were advised not to transfer from the Minister to the High Court the discretion to order payment of compensation in special circumstances, as provided in section 15. I understand the intentions behind the amendment. I consider that the function involved is properly a governmental rather than a judicial one. By tradition, the Irish courts have never been involved in planning matters except in relation to points of law. The judgment required to be exercised under this section is not a matter of law. The issue is whether in particular circumstances it would be reasonable to give a person access to compensation, notwithstanding the restrictions placed by section 13. I should explain that section 15 does not involve the Minister in any way in determining the amount of compensation which a person should receive. Under section 6 that is a matter for agreement at arbitration. That is another safeguard.
As far as can be established, only two orders have been made by Ministers under section 58 of the 1963 Act, the predecessor of this section, and the second of those orders was made in 1984. Applications have been more frequent than that and a total of 21 applications have been received under section 58 since 1977.
The relatively high failure rate of applications is another reason why we should be slow to introduce the High Court. If competence in this matter is transferred to the High Court, applicants will have to take on the cost of engaging solicitors and counsel, with only certain prospects of success. Application to the Minister involves virtually no expense. The power is exercised only in that very limited situation of justice and balance and the Minister does not finally decide the amount. I am asking that the amendment be withdrawn.
I fully accept the Minister's statement that it is not the Minister who fixes the amount of compensation. It is correct that it should not be the Minister or a court. The arbitrator would have knowledge of a specialist nature which the courts would not have. The Minister makes an order declaring that he is satisfied that it would not be just and reasonable in the particular circumstances that the payment of compensation should be prevented by the provisions of section 13. I am not sure how any Minister can make a decision as to whether it would be unjust and unreasonable to decline compensation. It would require special circumstances and an exceptional case for it to arise. I take the point that the problem with the High Court is that the level of legal costs involved might be a disincentive to anyone pursuing this issue. The Minister says that compensation has been paid in only two cases where the Minister has made the decision. I do not know if he has the information as to the ultimate award in those two cases. That might be of interest. It is unlikely unless there is a major dispute involving a large sum of money, that a claim would be made under this section.
The criteria by which the Minister has to make the decision are more the type of criteria that judges in the generality of dealing with the law are used to applying in practice. What is happening here is that the Minister is making a judicial decision. For the reasons I gave in my opening comments it would be preferable that the court would make that decision.
I note that the Minister took up Deputy Quinn's suggestion that it was perhaps because of constitutional reasons that this section was put in. I am not convinced there is any constitutional reason for the inclusion of this section.
Deputy Gilmore has told me that if the Minister accepts my amendment he will not vote against the section. I have no difficulty in joining with Deputy Gilmore in voting the section out, but obviously with the numbers we have we will not succeed. If before Report Stage the Minister will give further consideration to this power being exercised by the High Court, I will not press the amendment.
The danger in dealing with legislation of this nature is that we can get bogged down in all kinds of academic hypotheses that will never arise. The section in the 1963 Act has been used on only two occasions in almost 30 years. It could be that in the new legal situation this section would become more relevant and might give rise to more claims, being given greater attention than in the past. The Minister of the day, instead of dealing with the broad sweep of political decision-making which should be his job, could then find himself bogged down in the examination of individual cases of planning applicants seeking compensation. I do not think that is a job the Minister for the Environment should have put on his shoulders and I believe the general public would agree. The general public will see it as correct that the High Court should consider this matter. It does not have to be the High Court; it could be the Circuit Court to which the application would be made, if we are looking at ways of providing more simplified procedures and delimiting the legal cost impact. Possibly the District Court would be appropriate. I provided for the High Court primarily because when a point of law arises under the Planning Acts it is dealt with by the High Court. The High Court Judiciary have a degree of familiarity with the Planning Acts and how they work. That expertise and familiarity does not currently exist in the District or Circuit Courts.
This is an inappropriate power to be left with the Minister of the day. As an aspiring occupant of the Minister's Department at some future date, I have no personal desire to exercise this power. I would feel happier if it were the courts who were to exercise it.
I have exercised that power once or twice, and negatively for those seeking it. The Deputy is quite right in that we do not want to get back to a situation where there would be an increase in the number of demands under the section. I am advised that will not happen. It is an interesting point that section 58 has been reviewed in the courts on a number of occasions, in particular in the Grange case, and the argument the Deputy made was never raised. That reinforces my attitude that it was seen as a very good and useful instrument. The review has thrown up no circumstances which would suggest to the lawmakers that they should revise their opinions on it. That weighed heavily with me when I was considering the point.
The Minister can only exercise this power in very special circumstances but those circumstances have arisen in non-compensatable cases where an individual may feel he is hard done by and decides to appeal to the Minister. Quite an exhaustive investigation is carried out before a decision is made. I do not like putting something on the record unless I am absolutely positive but I will risk it on this occasion. I think that in one of the two cases in the last 30 years where compensation was granted the money was never paid subsequent to the ministerial decision being taken that it was right that section 58 should apply. Before the arbitrator had finalised his negotiations some arrangement was made with the local planning authority that did not necessitate the passing over of money at all. I think there was only one case, a very long time ago, when a Minister decided it should be paid. My recollection of the files, when dealing with a case under section 58 in the last three years, is that the amount of money was very small. I do not know the figure but that is my recollection of it.
I took some time considering this matter and said: "This will be the end of this matter". It comes back to the point raised by Deputy Quinn, that legal advice supported the question of balance. What we are doing here — and I said this in my Second Stage speech — is skirting along with the Constitution at its very limit in so far as the provision for private property is concerned.
Deputy Shatter was the first to tell me to be daring in this matter, to go beyond what is recommended by my legal advice and let the matter be tested elsewhere, if that is necessary, and found wanting but he said I would be doing the right thing by the public in so far as compensation is concerned. I took on board that principle and had to fight to have it accepted because legal advice is very dominating and cannot suggest anything that might in any way contravene the Constitution. Because we are at the limit here the legal advice is to retain this provision in order to ensure balance. I am asking the House, therefore, to accept it in good faith.
There is a problem of consistency here. Again and again in the course of this debate arguments used in respect of one section were not consistent with those used in relation to another. An hour ago we debated an amendment which I put down that eligibility for compensation would arise only after a decision from An Bord Pleanála. In his reply the Minister argued that An Bord Pleanála would be inundated with appeals from people to make them eligible for compensation. We are now dealing with a section which effectively makes the Minister the court of appeal in cases of claims for compensation. The point raised by Deputy Shatter that precisely the same thing would happen, that a lot of appeals would be brought before the Minister, seems to be dismissed by the Minister in this case. He said there have been only two such cases in the history of the present legislation. The reason there have been only two such cases is quite frankly that where claims for compensation have been lodged either the local authority caved in or, at the end of the day, had to pay the money.
We have to look exactly at what this section is about. I do not understand the constitutional argument that is being made by the Minister. I appreciate that I am not a legal person but from my recollection, both Justice McCarthy, when dealing with the XJS case, and Judge Walsh, when speaking separately about it, were very clear about the Constitution on this issue. They made it clear that the present law on planning compensation is probably unconstitutional. They drew our attention to the fact that the constitutional right to private property is qualified by the needs of social justice, common good and so on. I do not understand the constitutional argument that the Minister is making. I do not see that it arises elsewhere either. There are several cases within the Minister's brief where, under various pieces of legislation, people are entitled to apply for things and are turned down. When the case is made to the Minister his reply is that he has no discretion in the matter, a reply with which I am sure many Members of this House will be familiar. I do not understand why, in this case, a degree of discretion is being built into the legislation.
We are spending a lot of time putting through legislation which lists, in the First and Second Schedules of the Bill, the circumstances in which compensation cannot be paid either for a refusal of planning permission or for conditions applying to a planning permission. They are quite extensive and deal with a whole range of areas. The Minister wants to give himself the power to set those aside where he feels it would not be just and reasonable. That is wide open.
No, it is not.
It is. The Minister can make an order declaring that he is satisfied that it would not be just and reasonable in the particular circumstances that payment of compensation should be prevented by the provisions of section 13. That is wide open. It is giving the Minister virtually absolute discretion to decide, on an appeal from an applicant, to award compensation. The Minister does not have the power to set the amount of the compensation but under this section, as I understand it, he certainly has the power to state whether or not compensation should be paid in the first place. That is an excessive power for the Minister to have and is also one that could be abused.
We spent a lot of time this morning dealing with abuses of the planning system. I want to be very clear about this. I would not for a moment suggest that the Minister would be a party to or condone any abuse of the planning system. It is believed that the investigation that is going on at present about planning irregularities in Dublin includes investigations of certain politicians. Suppose it happened that a certain politician who was less than scrupulous about the application of planning procedures and planning law found himself in charge in the Custom House, what safeguard is there that this Bill, particularly this section, would not be abused and that decisions would not be made which would allow certain people to get compensation? This is a power the Minister should not have. The Bill is sufficiently comprehensive without this section. If the issue can be dealt with in the way described by Deputy Shatter, I would be satisfied to give way to that but if that is not possible, this section should be deleted from the Bill.
This provision is a safety valve. It is not proper for the Deputy to suggest that it is wide open. I would ask him to at least consider the exclusions outlined in subsection (2) of that section. Any reasonable interpretation of that will reveal that it is not a wide open provision but rather a very restrictive one. I know that Deputy Shatter will appreciate that in discussing the matter in 1988, Mr. Justice Keane referred to this very item, that the refusal of compensation in circumstances where it would be unjust could be met under the present legislation by permitting payment in special circumstances where the Minister for the Environment could order it under section 58. They contemplated that this safety valve would continue to exist. We might bear in mind for the rest of the evening that legislation which seeks to achieve the common good without treating the individual citizen in an unfair or arbitrary manner should have at least a reasonable prospect of surviving a challenge in the courts. That is why I am asking that this stay, and I must insist.
Amendment put and declared lost.
Amendments Nos. 40a, 69 and 70 are related so they can be discussed together by agreement.
I move amendment No. 40a.
In page 11, subsection (2), line 6, to delete "comprising" and substitute "including".
These are all drafting amendments with the same purpose. They are designated to respond to a point of interpretation which was adverted to, although not ruled on, in both the High Court and Supreme Court judgments on the XJS Investments Limited v. Dún Laoghaire Corporation case. In that case, the courts were inclined to the view that the reference to “structure” in section 56 (1) (i) of the 1963 Act should be construed in the singular only. This reference is to be found in the present Bill in the Third Schedule, paragraph 7, and there is also a parallel reference in section 15 (2) (b). The parliamentary draftsman is reluctant to compromise the general principle of the Interpretation Act, 1937, that the singular should normally import the plural also by expressly adding the plural as Deputy Gilmore's amendment does. However, the parliamentary draftsman has suggested amendments Nos. 40a and 70 as a means of clarifying that the terms “structure” also imports the plural in this case.
Amendment agreed to.
Section 15, as amended, agreed to.
SECTION 16.
I move amendment No. 41:
In page 12, subsection (2), line 1, to delete "not".
This is just to correct a drafting error.
Amendment agreed to.
Section 16, as amended, agreed to.
NEW SECTION.
I move amendment No. 42:
In page 12, before section 17, to insert the following new section:
"17. —A person shall not be entitled to assign to any other person all or any part of any prospective compensation under section 12, and every purported assignment or promise, express or implied, to pay any other person any money in respect of any such compensation is void.".
The purpose of this amendment is to prevent formal arrangements for the sharing of possible planning compensation between persons who may have compensation rights and persons not enjoying those rights. In practice this situation can probably only arise in the context of paragraphs 9 to 11 of the Third Schedule, since this is the only provision which differentiates for compensation purposes between earlier and later owners. The prohibition on sharing compensation has, however, been drafted in a general way and without particular reference to these provisions. The purpose of the amendment is to discourage developers from seeking indirectly to benefit from compensation by optioning land and making formal arrangements for the owner to apply for planning permission with the owner's possible right to compensation as a guarantee. The provision in this amendment should be self-enforcing in the sense that purported arrangements to share compensation will not be legally enforceable and will leave the non-owner at a risk in relation to whatever consideration he pays for the arrangement.
I welcome this amendment in the context of the original Bill where I emphasised the need for an amendment of this nature. The need is more limited now because of the nature of changes we are making to the Bill but I wish to express my support for the amendment and I thank the Minister for bringing it in.
It was because of Deputy Shatter's intimation that I introduced it but it is not as important now as it was.
I also thank the Minister for responding to the Second Stage debate, not just in respect of the timetable which is one aspect of the deletion in the Third Schedule.
It is a useful amendment though not as important as it was.
Amendment agreed to.
Section 17 agreed to.
SECTION 18.
I move amendment No. 43:
In page 12, subsection (1), lines 37 to 39, to delete "any person has suffered damage by the depreciation of any interest in the structure to which he is entitled, or" and substitute "the value of an interest of any person in the structure existing at the time of the notice is reduced, or that any person having an interest in the structure at that time has suffered damage".
Amendment agreed to.
I move amendment No. 44:
In page 12, subsection (1), line 41, after "compensation", to insert "the amount of such reduction in value or".
Amendment agreed to.
I move amendment No. 45:
In page 12, lines 47 and 48, to delete subsection (3).
Amendment agreed to.
Section 18, as amended, agreed to.
SECTION 19.
I move amendment No. 46:
In page 13, subsection (1), lines 4 to 6, to delete "any person has suffered damage by the depreciation of any interest in the land to which he is entitled, or" and substitute "the value of an interest of any person in the land existing at the time of the notice is reduced, or that any person having an interest in the land at that time has suffered damage".
Amendment agreed to.
I move amendment No. 47:
In page 13, subsection (1), line 8, after "compensation" to insert "the amount of such reduction in value or".
Amendment agreed to.
Acting Chairman
Amendments Nos. 48 and 76 can be taken together as they are related.
I move amendment No. 48:
In page 13, subsection (1), line 13, after "serious" to delete "air or".
The Air Pollution Act, 1987 provided for the repeal of sections 56 (1) and 61 (1) of the 1963 Act to the extent that these related to air pollution. The reasoning involved was that for the future we should generally rely on the Air Pollution Act to support any necessary measures to prevent air pollution. In particular, planning conditions, as distinct from a refusal, should no longer deal with air pollution matters. Since we should no longer have air pollution conditions in planning permission, reference to them in this context is redundant and they were earmarked by the Air Pollution Bill for repeal. The Air Pollution Bill does not admit of compensation. These provisions identified for repeal were inadvertently reinstated by section 19 and the Fourth Schedule, paragraph 25 of this Bill, as published. The amendments will repeal both references to air pollution and restore the position as intended by the Air Pollution Act, 1987.
Amendment agreed to.
I move amendment No. 49:
In page 13, lines 24 and 25, to delete subsection (4).
Amendment agreed to.
Section 19, as amended, agreed to.
SECTION 20
I move amendment No. 50:
In page 13, lines 28 to 30, to delete "any person has suffered damage by the depreciation of any interest in the land on which the hedge is situate to which he is entitled, or" and substitute "the value of an interest of any person in the land existing at the time of the notice is reduced, or that any person having an interest in the land at that time has suffered damage".
Amendment agreed to.
I move amendment No. 51:
In page 13, to delete line 33 and substitute "of compensation the amount of such reduction in value or such damage.".
Amendment agreed to.
Section 20, as amended, agreed to.
SECTION 21.
I move amendment No. 52:
In page 13, to delete lines 34 to 39 and substitute the following:
"If, on a claim made to the planning authority, it is shown that, as a result of any decision of the authority to refuse a consent required under an order under section 45 of the Principal Act, or to grant any such consent subject to conditions, the value of an interest of any person in the land to which such decision relates existing at the time of the decision is reduced, or that any person having an interest in the land at that time has suffered damage by being disturbed in his enjoyment of the land, such person shall, subject to the provisions of this Act, be entitled to be paid by the planning authority by way of compensation the amount of such reduction in value or the amount of such damage, but—".
Amendment agreed to.
I move amendment No.53:
In page 14, paragraph (c), line 2, after "condition" to insert "for attachment".
Amendment agreed to.
I move amendment No. 54:
In page 14, paragraph (d), line 11, after "condition" to insert "for attachment".
Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22.
I move amendment No. 55:
In page 14, line 18, to delete "depreciated" and substitute "reduced".
Amendment agreed to.
I move amendment No. 56:
In page 14, lines 21 to 23, to delete "that authority shall pay to that person compensation equal to the amount of the depreciation or damage." and substitute "such person shall, subject to the provisions of this Act, be entitled to be paid by the planning authority by way of compensation the amount of such reduction in value or the amount of such damage.".
Amendment agreed to.
Section 22, as amended, agreed to.
Section 23 agreed to.
SECTION 24.
I move amendment No. 57:
In page 14, lines 32 to 34, to delete "any person has suffered damage by the depreciation of any interest in the land or structure concerned to which he is entitled, or" and substitute "the value of an interest of any person in the land or structure existing at the time of the action of the planning authority is reduced, or that any person having an interest in the land or structure at that time has suffered damage".
Amendment agreed to.
I move amendment No. 58:
In page 14, line 37, after "compensation" to insert "the amount of such reduction in value or".
Amendment agreed to.
Section 24, as amended, agreed to.
Amendment No. 59 not moved.
Sections 25 and 26 agreed to.
NEW SCHEDULE
I move amendment No. 60:
In page 16, before line 1, to insert the following new Schedule:
FIRST SCHEDULE RULES FOR THE DETERMINATION OF THE AMOUNT OF COMPENSATION
1. The reduction in value shall, subject to the provisions of this Schedule, be determined by reference to the difference between the antecedent and subsequent values of the land, where—
(a) the antecedent value of the land is the amount which the land, if sold in the open market by a willing seller immediately prior to the relevant decision under Part IV of the Principal Act (and assuming that the relevant application for permission had not been made), might have been expected to realise, and
(b) the subsequent value of the land is the amount which the land, if sold in the open market by a willing seller immediately after the said decision, might be expected to realise.
2. In determining the antecedent value and subsequent value of the land for the purposes of Rule 1—
(a) regard shall be had to—
(i) any contribution which a planning authority might have required or might require as a condition precedent to development of the land,
(ii) any restriction on the development of the land which, without conferring a right to compensation, could have been or could be imposed under any Act or under any order, regulations, rule or bye-law made under any Act,
(iii) the fact that exempted development might have been or may be carried out on the land, and
(iv) the open market value of comparable land, if any, in the vicinity of the land whose values are being determined;
(b) no account shall be taken of—
(i) any part of the value of the land attributable to subsidies or grants available from public moneys, or to any tax or rating allowances in respect of development, from which development of the land might benefit,
(ii) the special suitability or adaptability of the land for any purpose if that purpose is a purpose to which it could be applied only in pursuance of statutory powers, or for which there is no market apart from the special needs of a particular purchaser or the requirements of any statutory body as defined in Rule 5; provided that any bona fide offer for the purchase of the land which may be brought to the notice of the arbitrator shall be taken into consideration,
(iii) any increase in the value of land attributable to the use thereof or of any structure thereon in a manner which could be restrained by any court, or is contrary to law, or detrimental to the health of the inmates of the structure or to public health or safety or to the environment,
(iv) any depreciation or increase in value attributable to the land, or any land in the vicinity, being reserved for a particular purpose in a development plan,
(v) any value attributable to any unauthorised structure or unauthorised use,
(vi) (I) the existence of proposals for development of the land or any other land by a statutory body, or
(vi) (II) the possibility or probability of the land or other land becoming subject to a scheme of development undertaken by such statutory body, and
(c) all returns and assessments of capital value for taxation made or acquiesced in by the claimant may be considered.
3. (1) In assessing the possibilities, if any, for developing the land, for the purposes of determining its antecedent value, regard shall be had only to such reasonable possibilities as, having regard to all material considerations, could be judged to have existed immediately prior to the relevant decision under Part IV of the Principal Act.
(2) Material considerations for the purposes of the foregoing sub-rule shall, without prejudice to the generality thereof, include—
(a) the nature and location of the land,
(b) the likelihood or unlikelihood, as the case may be, of obtaining permission, or further permission, to develop the land in the light of the provisions of the development plan,
(c) the assumption that, if any permission to develop the land were to be granted, any conditions which might reasonably be imposed in relation to matters referred to in the Fourth Schedule (but no other conditions) would be imposed, and
(d) any permission to develop the land, not being permission for development of a kind specified in section 14(2), already existing at the time of the relevant decision under Part IV of the Principal Act.
4. (1) In determining the subsequent value of the land in a case in which there has been a refusal of permission—
(a) it shall be assumed, subject to sub-rule (2), that, after the refusal, permission under Part IV of the Principal Act would not be granted for any development of a kind specified in section 14(2),
(b) regard shall be had to any conditions in relation to matters referred to in the Fourth Schedule (but no other conditions) which might reasonably be imposed in the granting of permission to develop the land.
(2) In a case in which there has been a refusal of permission in relation to land in respect of which there is in force an undertaking under Part VI of the Principal Act, it shall be assumed in determining the subsequent value of the land that, after the refusal, permission under Part IV of the Principal Act would not be granted for any development other than development to which the said undertaking relates.
5. (1) In Rule 2, `statutory body' means:
(a) a Minister of the Government,
(b) the Commissioners of Public Works in Ireland,
(c) a local authority within the meaning of the Local Government Act, 1941,
(d) a harbour authority within the meaning of the Harbours Act, 1946,
(e) a health board established under the Health Act, 1970,
(f) a vocational education committee within the meaning of the Vocational Education Act, 1930,
(g) a board or other body established by or under statute,
(h) a company in which all the shares are held by, or on behalf of, or by directors appointed by, a Minister of the Government, or
(i) a company in which all the shares are held by a board, company, or other body referred to in paragraph (g) or (h).
(2) In sub-rule 1 (h) and (i), `company' means a company within the meaning of section 2 of the Companies Act, 1963.".
We had discussed this amendment but we did not necessarily agree with it. We discussed the method of valuation but there is an awful lot of meat in this Schedule and, while the Minister may have his mind on other classes of meat which he would like to eat at this hour of the day, I advise him to get his teeth into an explanation of the way the rules will be interpreted and how the original Schedule, known as the First Schedule, based on the 1919 Act, has now been changed. I have been informed that a lot of case law has accompanied standards and methods of valuation in relation to determining under the First Schedule, for the purposes of establishing the amount of compensation, the way in which the old Schedule worked. When we were debating this matter last week I raised some questions in relation to the whole concept of antecedent and subsequent value and whether that related to existing use value.
I also asked if the Minister was satisfied at this stage that the rules as proposed to be set out in schedule one — and some consequential rules in the other Schedules — would be clearly and readily understood by the group of people who will be entrusted with the task of interpreting them on behalf of the local authority or individual landowners. I understand that a letter dated 22 March 1989, was sent to the Minister in relation to the Bill now before us from the Society of Chartered Surveyors of the Republic of Ireland in which a large number of points were made. They referred to the First Schedule as originally published not the First Schedule now proposed. They said:
In the First Schedule the proposals to amend rule 1 and rule 2 of the 1919 Act is clumsy and ill advised. It indicates a lack of understanding of the concepts involved. The amendment proposed at 2 (a) is meaningless.
I should like the Minister to respond to the thinking behind the change in the First Schedule which I welcome. However, I should like to get some reassurance as to its operational practicality.
Acting Chairman
This amendment has already been discussed.
I realise that.
Amendment agreed to.
Amendments Nos. 1 to 8, inclusive, to amendment No. 60 not moved.
First Schedule deleted.
SECOND SCHEDULE.
I move amendment No. 61:
In page 17, between lines 27 and 28, to insert the following paragraphs:
"2. The demolition of a habitable house.
3. The demolition of a building of artistic, architectural or historical interest which it is a development objective of the development plan to preserve.".
This amendment adds two further categories of development to the Second Schedule. Refusal of planning permission will never be compensatable where the proposed development is in a class set out in this Schedule. This will be so regardless of the reasons for refusal in any specified planning decision. I have already explained the background to the question of demolition of habitable houses which was dealt with in amendment No. 2. This amendment will also make refusal of permission to demolish a listed building a non-compensatable matter. This is consistent with the conservation status of such buildings and with the approach adopted in the National Monuments Act which has been upheld in case law. I recommend the amendment.
I want to make progress, but we should not lose the run of ourselves. Are we on amendment No. 61?
Yes.
We are talking about the demolition of a habitable house?
Yes.
Amendment agreed to.
Acting Chairman
We now move to amendment No. 62 in the name of Deputy Gilmore. Amendment No. 73 and amendments Nos. 1, 2 and 3 to amendment No. 73 are related. We will discuss amendments Nos. 62, 73 and amendments Nos. 1, 2 and 3 to amendment No. 73 together.
I move amendment No. 62:
In page 17, between lines 27 and 28, to insert the following paragraph:
"2. Any development that is in material contravention of the development plan, adopted under Part III of the Principal Act."
Progress reported; Committee to sit again.